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the government and the governed, to decide by the test that the state shall not deprive the individual of his life, liberty or property without due process of law, that amendment ought to be amended. It would be sufficient if the words "for alleged wrong-doing" were inserted before the words "of life," so that the phrase would read "nor shall any state deprive any person, on account of alleged wrong-doing, of life, liberty or property, without due process of law." In case of governmental action aimed at individuals or corporations on account of alleged wrong-doing, it would then be the duty of the courts to see that the alleged wrong-doer had a fair hearing and trial under an appropriate process established by law, and according to principles of law duly established.

But perhaps no such amendment is necessary. It may be considered that the fourteenth amendment was not intended to have the broad signification which the courts have attached to it, and that the natural meaning to be given to the words above quoted-especially as the words "deprived of his life, liberty or property" are used, which almost necessarily mean a taking away on account of wrong-doing-is the restricted one according to which the provision in which these words occur is confined to governmental action directed against alleged wrong-doers. If so, the words are ambiguous, and the courts can by their own construction give the amendment its proper meaning.

The provision denying to governments the power to deprive individuals of their life, liberty or property without due process of law is one which occurs in most of the state constitutions, and the state courts have followed the United States Supreme Court in construing it as applying to all forms of governmental action by state governments. If by constitutional amendment or

by construction of the United States Supreme Court the restricted meaning above mentioned is given to this provision, the effect would be to induce the state supreme courts to restrict the meaning of these words in the state constitutions, and the confusion which has been caused by attaching too wide and general a meaning to this constitutional provision should, it would seem, tend to cease.

If the courts should thus by a proper construction of the words "due process of law" be put in the position where they would have to apply specific and easily understood limitations of governmental powers as tests in exercising their superintending and nullifying power, with the addition that they were obliged to nullify any governmental action that was clearly not "just," it is probable that there would not be much dissatisfaction with their constitutional decisions. If the issue was as to the application of a specific and plainly worded constitutional limitation, there would not be room for much personal or partisan reasoning by the judges. If the issue were as to whether a particular governmental action was "just," the court would hold such action unconstitutional only in case it was clearly absurd or impossible, as being opposed to the natural laws of the material universe, or in case it was clearly wrongful as being opposed to the fundamental principles of social justice formulated in the Ten Commandments of the Old Testament and in the Two Commandments of the New Testament. The natural laws of the material universe are necessarily fundamental law; and it is not too much to say that the Great Commandments are now accepted, in theory at least, throughout the society of nations, as fundamental law. Courts in determining whether governmental action was or was not just would in fact be sitting not as state or national courts,

but as courts of the society of nations; for the same principles which would determine whether a certain governmental action was unjust in one nation, would equally control in a similar case in every other nation, and any court in deciding such a case would in a very true sense be applying the constitutional law of the society of nations as the supreme law.

In passing it may be said that this conception of our national courts sitting as courts of the society of nations is not a fanciful suggestion, but is a practical political fact. More and more statesmen and publicists everywhere are realizing and accepting as a fact of practical politics that there is a society of the peoples, states and nations of the world, which for want of a better name we call "the society of nations"; that this society is a corporation composed of corporations and a federal state, having a federal government which is the agent for the common purposes of the peoples, states and nations governed; that this federal government does not consist of a body of definite persons, collected together in one place as the capital, and is not elected on the representative basis, but is made up of nations, states, governmental officers of nations and states, and publicists, scattered over the face of the earth, and is carefully arranged so as to protect the rights of the weaker states and nations and of all minorities; that this inclusive society and federal state has by various legislative methods formulated and is still formulating its own federal constitutional, statutory and customary law, commonly known as "international law"; and that it is daily enforcing its federal law by various executive methods and particularly through the nations and states as its executive organs; and that therefore national courts, in determining what is "just," are not at liberty to consider alone what is regarded as just by

the "common juridical conscience" of their own nation, but must also consider what is regarded as just, and treated as fundamental law, by the "common juridical conscience" of the society of nations.

We may, therefore, it would seem, reasonably hope that by making all our special constitutional limitations clear and distinct and easily understood,-which we shall do by giving the "due process of law" provisions a restricted meaning so that they will apply only where governmental action is directed against individuals as alleged wrong-doers, and by making the only general test of constitutionality the test of "justice,"-regarding "justice" as that which is considered just by the "common juridical conscience" of the society of nations, -the courts will, as a general rule, act in a manner satisfactory to the enlightened intellect and conscience of the people. But when all precautions are taken it may still happen that the courts, as the superintending and nullifying agencies of our states as corporations, will occasionally err and will themselves exceed their powers and act unconstitutionally. The question arises, what shall be the remedy in such a case.

One remedy which has already been frequently applied, is to amend our constitutions so as to recall the erroneous decisions and validate future governmental action of the kind which the courts have wrongly nullified. But such a process of amending our constitutions is dangerous to our system. Our written constitutions by such amendments are ceasing to be statements of fundamental principles and are becoming confused legislative codes. Thus by this method of attempting to remedy the difficulty our written constitutions are being indirectly destroyed. It is necessary, therefore, to consider other possible remedies.

If we agree that states are corporations, the remedy

to be applied where the courts of a state exceed their powers to superintend and nullify other agencies and nullify wrongly, is the same as would be applied in a corporation if a superintending and nullifying official in a corporation should wrongly exercise his powers of superintendence and should nullify action which he ought to have allowed to stand as valid. The members of the corporation, while indulging in every presumption in favor of the superintending and nullifying official, and relying, as reasonable men ought to do, upon his expert judgment to the fullest extent possible, would, if they were satisfied beyond a reasonable doubt that he had nullified action of an agent which he ought not to have nullified, either remove him by vote of the majority of the members or validate by similar vote the action which he purported to nullify.

This seems to be what is meant by "the recall of judges" and "the recall of decisions," as these expressions are now used by those who believe our courts have erred. The recall of judges is, however, used in two senses which it is necessary to distinguish from each other. There is a recall of judges for incompetence, and a recall of judges for having participated in constitutional decisions by which governmental action has been wrongly nullified. The recall of judges for incompetence, and the recall of judges for participation in constitutional decisions which are erroneous, stand on entirely different grounds. Every state or nation ought to have some orderly method of removing judges for incompetence. Impeachment does not meet such a case, since impeachment is permissible only where moral turpitude can be proved. The best method of removal seems to be by action of the legislature addressed to the executive, though there appears to be no serious objection to a referendum for this purpose if the people prefer

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